Sales Terms & Conditions
1. Definitions and Interpretation. As used in these Sales Terms and Conditions (the “Terms”), “Agreement” means these Terms, together with the ARTiculatedshade, LLC (“Seller”) standard form of purchase order (“Seller PO”) or, if Seller received a buyer (“Buyer”) form of purchase order (“Buyer PO”), the applicable Seller order acknowledgment (an “Acknowledgment”) (the Seller PO or Acknowledgment, as applicable, an “Order”); “Delivery” means partial or full delivery of the Products to Buyer in accordance with the Terms; “Laws” means all applicable federal, state, and local laws, codes, rules, regulations, and orders of any governmental authority, as amended; “Prices” means the prices set forth in the Order; “Products” means the goods specified in the Order; and “Reseller” means a Buyer that purchases the Products for resale or distribution. In interpreting the Agreement: (a) the singular includes the plural and vice versa; (b) “include” or “including” means including without limiting the generality of any description preceding such term; (c) headings are for convenience only and do not constitute a part of the Agreement; (d) all references to money refer to United States currency unless otherwise indicated on the Acknowledgment; and (e) references to Seller are deemed to include affiliates of Seller that provide Products to Buyer.
2. Entire Agreement. All Deliveries of Products are subject to the Terms, regardless of whether the Terms are attached to or referenced in an Order or shipping document or are delivered separately. Buyer shall be deemed to have irrevocably accepted the Terms upon the earliest of (a) Seller’s delivery of a Product, (b) acceptance of Delivery of a Product, or (c) payment of any amount due for a Product. If inconsistencies exist (i) between the Terms and the terms of an Order, the Terms shall control, or (ii) between the terms of a Buyer PO and the terms of an Acknowledgment, the terms of the Acknowledgment shall control. If any additional or different terms are contained in a
Buyer PO or other documentation issued by Buyer (“Proposed Terms”), the Terms shall govern regardless of when the Proposed Terms are received by Seller, unless Seller agrees in writing to the Proposed Terms; otherwise, Seller rejects all Proposed Terms.
3. Payment Terms; Taxes. Buyer shall pay the Price in accordance with the payment schedule set forth in an Order. Seller shall only be obligated to manufacture (or cause to be manufactured) and ship the Products after Seller has received the down-payment for the Products indicated in an Order. Prices exclude all taxes (including sales and use tax), all of which shall be paid by Buyer. Buyer shall not deduct any taxes from any payment unless Seller has confirmed receipt of a valid tax-exempt certificate from Buyer.
4. Change Orders; No Returns. Buyer may change or cancel the quantity or types of Products requested in an Order by the issuance of a change order, so long as the change order is delivered by Buyer prior to Buyer’s full payment of the down payment for the applicable Products. Seller shall confirm acceptance of a change order by notice to Buyer, which notice may include equitable adjustments in the Prices and dates of Delivery for the affected Products. After full payment of the down payment to Seller, no modifications to an Order will be accepted, and Buyer will be bound by the unmodified Order. After the earlier of full payment of the Prices or Delivery, all Products are nonrefundable and nonreturnable.
5. Shipment; Title; Delivery. Unless otherwise indicated in an Order, Buyer will pay shipping and handling and will insure the shipment of the Products using an insurance carrier of its choice. Risk of loss of the Products (including all risk of theft, damage, or destruction of the Products) shall transfer from Seller to Buyer upon Buyer’s carrier’s receipt of such Products. Title to the Products specified in an Order shall transfer to Buyer upon the later of (a) full payment of the Prices and (b) Delivery. In the event of any delay in the Delivery schedule set forth in an Order, Seller shall attempt to notify Buyer, but Seller shall not be in default due to any such delays.
6. Reseller. If Buyer is Reseller, Buyer shall (a) market, advertise, promote, and resell the Products to end-users consistent with good business practices, using its best efforts to maximize the sales volume of the Products and in a manner that reflects favorably at all time on the Products and the good name, goodwill, and reputation of Seller, (b) comply with all Laws regarding the resale of the Products, (c) not make any representations, warranties, guarantees, indemnities, similar claims or other commitments on behalf of Seller regarding the Products that are additional to or inconsistent with the Agreement, (d) not engage in any unfair, competitive, misleading or deceptive practices respecting Seller, Seller’s trademarks, or the Products, and (e) not service, repair or modify the Products.
7. Installation; Safety; Insurance. Buyer shall, and if Buyer is a Reseller, shall cause its customers to, comply with all Laws relating to the use, handling, transportation, installation, service, maintenance and cleaning of the Products. Seller has no obligation to install, supervise, or otherwise assist Buyer with the installation of Products. Seller shall provide reasonable technical support by phone during Seller’s standard business hours for general questions regarding the Products. Buyer and, if applicable, its customers, shall be solely responsible for (a) investigating installers and determining the qualifications of installers for particular Products, and (b) compliance by Buyer and any installer with all Laws and standard industry practices during installation.
8. Limited Warranty. Seller shall make certain limited warranties regarding Products that are manufactured by Seller (“Limited Warranty”) solely to and for the original end-user’s benefit, which will either be (i) included in a written warranty statement with the Products; or (ii) Seller’s standard limited warranty in force when the Product is delivered by a Buyer that is a Reseller to an end-user. Effective upon a Reseller’s resale of a Product not manufactured by Seller to an original end-user or, if Buyer is the enduser, transfer of title to the Product to Buyer hereunder; Seller assigns to such end-user all assignable warranties on the Product provided by the manufacturer of such Product.
Except for the Limited Warranty, SELLER MAKES NO REPRESENTATIONS OR
WARRANTIES, WHETHER OR NOT EXPRESS, REGARDING THE GOODS, INCLUDING COMPLIANCE WITH BUYER’S OR END USER’S SPECIFICATIONS OR INDUSTRY STANDARDS; ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED.
9. Inspection. Within ten days after Delivery, Buyer shall inspect each Product and notify Seller of any Product that does not conform to the type listed in the Order (a “Nonconforming Product”). If Seller determines that such Product is a Nonconforming Product, Seller shall, at Seller’s option, (a) replace the Nonconforming Product or the nonconforming part of the Product, if applicable, with a conforming Product or conforming part, (b) refund the Prices paid by Buyer or end-user, as applicable, for the Nonconforming Product, or (c) address such nonconformance in accordance with the Limited Warranty. At Seller’s request, Buyer shall ship, at Seller’s expense and risk of loss, all Nonconforming Products or nonconforming parts, as applicable, to Seller’s facility located at 1089 Gilbert St, Boulder, Colorado 80302. The remedies set out in this Section are Buyer’s exclusive remedies and Seller’s sole liability for Nonconforming Products.
10. Limitation of Liability. EXCEPT AS PROVIDED IN THE LIMITED WARRANTY,
SELLER SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR (a) ANY LOSS, INCONVENIENCE, OR DAMAGE, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHERWISE, INCLUDING IF RESULTING FROM THE TRANSPORTATION, INSTALLATION, USE OR REPLACEMENT OF THE GOODS, OR RESULTING FROM ANY BREACH OF THE LIMITED WARRANTY, OR (b) THE FAILURE OF THE GOODS (i) TO PERFORM TO THE SPECIFICATIONS OR STANDARDS FOR THE GOODS OR (ii) TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP. BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER’S SOLE AND EXCLUSIVE LIABILITY, FOR FAILURE TO DELIVER A PRODUCT SHALL BE A REFUND OF THE PRICE PAID BY BUYER FOR THE APPLICABLE PRODUCT PLUS INTEREST AT THE RATE PUBLISHED FROM TIME TO TIME IN THE “MONEY
RATES” SECTION OF THE WALL STREET JOURNAL AS BEING THE “PRIME RATE” DURING SUCH INTEREST PERIOD. WE SHALL NOT BE LIABLE FOR ANY LOSS OF
USE, LOSS OF PROFITS, OR FOR ANY OTHER INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT MAY ARISE FROM SUCH FAILURE TO DELIVER.
11. Indemnification. Buyer shall indemnify, hold harmless, and if requested by Seller, defend, Seller, its affiliates, and its affiliates’ respective successors, assigns, employees, officers, directors, shareholders, members, partners, contractors, and consultants (as applicable, the “Indemnified Party”) from and against all losses, costs, expenses, liabilities, damages, fines, or penalties, including reasonable attorneys’ fees and all expenses and other litigation or settlement expenses (collectively “Losses”) sustained or incurred by the Indemnified Party, including in connection with a claim, demand, or action (a “Claim”) made by a third party against the Indemnified Party, to the extent arising from (a) failure of Buyer to perform Buyer’s obligations under the Agreement, and (b) Buyer’s and, if Buyer is a Reseller, Buyer’s customers’ use, handling, transportation, installation, service, maintenance, cleaning, and disposal of the Products, including injuries to person or property before, during, and after installation.
12. Notices. All notices, change orders, and other communications required or permitted to be given under the Agreement shall be (a) in writing, (b) delivered in person or by electronic mail, overnight courier, or certified mail, postage prepaid, return receipt requested, to the receiving party at the address shown on the Order, or to such other address as such party may have given to the other by notice pursuant to this Section, and (c) deemed received on the date of delivery or refusal date, as applicable.
13. Governing Law. The Agreement shall be governed by and construed according to the Laws of the State of Colorado, excluding any conflict of Laws principles. Any litigation under the Agreement shall be brought and maintained in the appropriate courts in Boulder, Colorado, and each party submits and irrevocably waives any objection to in personam jurisdiction in the State of Colorado and the state and federal courts thereof.
14. Miscellaneous. If Seller is required to take any action to enforce the terms of the Agreement, Seller shall be entitled to reasonable attorneys’ and other professionals’ fees and costs, costs of collection, and interest at the statutory rate on any unpaid amount from the date due. A party that fails to perform its obligations under the Agreement (other than failure to make payments when due) shall be free from liability for failing to perform if such failure is caused due to acts of God, labor difficulties, fires, or other causes beyond the reasonable control of the affected party. The Agreement (a) may be amended or cancelled only in writing signed by both parties, and (b) may not be assigned by Buyer without Seller’s prior consent, and any attempt to assign it without such consent shall be void. If any of the provisions of the Agreement shall for any reason be held void or unenforceable, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable.